Mr S Stypka v JK Same Day Delivery Ltd: 1604166/2024
EMPLOYMENT TRIBUNALS
Case No 1604166/2024
Between
Mr S StypkaClaimantJK Same Day Delivery LtdRespondent
Before
Employment Judge E MacdonaldMr W Slivinsky for claimantMs Williams (instructed by Counsel) for respondentDate 10 July 2025
JUDGMENT
[1]The claim is struck out pursuant to r 38(1) of the Employment Tribunal Procedure Rules 2024. Approved by: Employment Judge E Macdonald 10 July 2025[2]JUDGMENT SENT TO THE PARTIES ON 22 July 2025 Kacey O’Brien FOR THE TRIBUNAL OFFICE Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided they will be placed online. All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/[7]Heard at: Cardiff Employment Tribunal On: 9 & 10 July 2025
REASONS
[1]The Form ET1 in this matter was received on 20 September 2024 and initially comprised claims of disability discrimination, unauthorised deductions from wages, holiday pay, failure to provide a written statement of particulars of employment, and failure to provide written itemised pay statements.[2]The Respondent resisted the claims and contended that the Claimant was a self- employed contractor.[3]On 28 April 2025 EJ Jenkins determined that the Claimant was not disabled at the relevant times for the purposes of s 6 Equality Act 2010, and the complaints of disability discrimination were therefore dismissed.[4]Also on 28 April 2025 EJ Jenkins made case management orders and listed the matter for a final hearing to take place remotely, by video.[5]The focal issue in the hearing on 9 & 10 July 2025 was whether the Claimant was a worker of the Respondent within the meaning of s 230 Employment Rights Act 1996. In the event that the Claimant did not succeed on this point, his claims would fail.[6]After the close of evidence on Day 2, and having heard submissions from the parties, I concluded that the Claimant had deliberately attempted to mislead the Tribunal by tendering altered documents in evidence. I considered that, as a consequence, the manner in which the proceedings had been conducted by or on behalf of the Claimant was scandalous and unreasonable. I also took the view that the claim had no reasonable prospect of success, because the Claimant’s evidence could not be trusted: the Claimant’s conduct had fundamentally undermined his credibility. Having heard submissions from the parties, I struck out the claim in its entirety under r 38(1)(b) of the Rules.
The hearing
[7]I was provided with witness statements of Lukasz Sielicki, Wojtek Kordalski, Monika Kukurowska, and Piotr Rutkowski on behalf of the Respondent, but they did not attend to confirm the truth of their statements and be cross-examined. I therefore read their statements but accorded them very little weight. I heard oral evidence from the Claimant himself; he was ably cross-examined by Ms Williams. I also heard evidence from Mr Jan Kokurowski, the owner of the Respondent company, who was cross-examined by Mr Slivinsky.[8]The Tribunal was considerably assisted by the services of Ms Dubiel (translator), who had previously been booked to attend Day 1 of the hearing only. As will become apparent below, an issue of potentially serious misconduct on the part of the parties came to light, and it therefore became important that the parties should have access to the services of a translator for Day 2.[9]Ms Dubiel kindly made herself available for Day 2 at very short notice and was able to assist. Had she not done so, there would have been a significant risk that the hearing would have been adjourned, causing substantial additional cost and delay, and making further demands on the Tribunal’s limited resources. I was therefore particularly grateful to Ms Dubiel for her diligent and patient assistance which enabled the case to be completed within the allotted time.[10]I was also provided with a bundle of documents. There was substantial dispute over whether the parties had complied with the necessary disclosure obligations.[11]At the close of Day 1 I directed the Claimant to disclose documents such as invoices, collection receipts, delivery notes etc. relating to work carried out for the Respondent before the start of Day 2; and I directed the Respondent to disclose .pdf copies of the documents referred to, such as delivery notes etc., together with their metadata, to be disclosed electronically. I declined to make an order for the Respondent to disclose bank statements, but reminded the Respondent of its disclosure obligations and in particular of the effect of Paragraph 16 of the Case Management Order dated 9 January 2025.[12]Further evidence was produced by the parties, both documentary evidence and video evidence of the creation of certain documents (adduced by the Respondent); this evidence was considered on Day 2.[13]As the evidence progressed, it became clear that the parties had placed before the Tribunal different versions of the same documents, primarily invoices and delivery notes. Those documents were directly relevant to worker status: in particular, on the Claimant’s version of the documents, the documents often included the letters “JK” or similar next to the Claimant’s name (thereby purporting to show that the Claimant was signing on behalf of the Respondent company); on the Respondent’s version of those same documents, the letters “JK” (or equivalent) were absent.[14]The Claimant was cross-examined extensively on this disparity. I had the benefit of viewing video evidence showing the documents being downloaded from “CX”, which is in effect a web portal which allows documents such as invoices, delivery notes, etc., to be uploaded directly once a delivery is complete.[15]I made the following findings of fact on the balance of probabilities and having regard to the evidence in the round. For reasons which will become apparent, these findings are limited to the relatively narrow question of whether the Claimant had tendered altered documents in evidence.
Findings
[16]The Claimant worked as a delivery driver or courier. The precise details of the arrangement between the Claimant and Respondent are not essential for the purposes of these Reasons. It is sufficient to record that the Claimant would undertake deliveries for clients; the Respondent would identify jobs which clients were seeking to have undertaken, would offer those jobs to the Claimant, and the Claimant would then decide (or not) to carry out those deliveries. The work was arranged and administered through a web portal, “Courier Exchange” (referred to generally as “CX”).[17]When the Claimant completed a delivery, he would sign the invoice for the delivery and upload a copy of that signed document to “CX”.[18]The Claimant’s disclosure contained a large number of copies of those documents with the letters “JK” added, or something comparable (e.g. “JK Stypka”). The Respondent’s disclosure contained copies of those documents with the Claimant’s signature but without the letters “JK” (or comparable wording). The Claimant’s case was that the Respondent had altered the documents to remove those letters; the Respondent’s case was that the Claimant had added those letters in after the fact.[19]I was taken to multiple instances of the contrast between those documents. I will not rehearse these exhaustively. I do however record the following instances.[20]In one example (Bundle, p 278) the Respondent’s copy (which omitted the letters “JK”) was an image of a document which had clearly been caught in the rain; there were evident marks from water droplets on the page. The Claimant’s copy, which included the letters “JK”, also bore marks from water droplets. The two copies were, from inspection, clearly identical, save for the “JK” addition. This was not a case where there the discrepancy could be explained by two pro forma documents having been completed with slight differences. Nor was it not realistic to suppose that the letters “JK” had been removed by the Respondent such as to leave the water marks intact.[21]In other examples, the letters “JK” either touched or straddled pre-existing pro forma lines on the page. Similarly, it was not credible to suppose that the Respondent had removed the letters “JK” without interfering with the pro forma markings.[22]On another document, dated 4 August 2021, the name of the Respondent company appeared on the invoice. However, it was common ground that the Claimant had worked for the Respondent from 2022 – 2024 (albeit in what capacity, it was not agreed). It was put to the Claimant that it made no sense for the Respondent’s name to appear on a document which had been signed for before the Claimant began working for the Respondent. The Claimant had no answer to this. I accepted the submission made by Ms Williams: there is no plausible reason why the Respondent’s name would have appeared on that document, and I therefore found that the Respondent’s name had been added after the fact by the Claimant in an attempt to bolster his case.[23]Images of these (and similar) documents were uploaded by the Claimant to the CX portal at the time of delivery. The documents which were uploaded to the portal were therefore the original documents. The dates on the portal records corresponded with the dates of the deliveries, and also recorded the Claimant’s name next to the portal uploads. I found that the Claimant himself had uploaded the documents to the portal. Having viewed video footage of the Respondent downloading some of those documents from the portal, I am entirely satisfied that the Respondent’s disclosure contains true copies of the original documents. Those true copies omit the letters “JK” (or “JK Stypka” and cognate phrases). It follows that the letters “JK”, as they appear in the Claimants’ disclosure, were added after the fact by the Claimant. The Claimant had no credible (or plausible) explanation as to how those letters might have been removed by the Respondent.[24]Mr Kokurowski said – and I accepted – that he was very bad with computers. Neither he nor his wife had much in the way of IT skills. There was no plausible mechanism by which the documents could have been altered in the way suggested by the Claimant, in particular given that the evidence showed the Respondent’s documents (as disclosed) being produced within two minutes of download (an example being the timestamps at Bundle p 278).[25]I reminded myself that the more serious the allegation, the more cogent the evidence is required to establish it, notwithstanding that the test remains “the balance of probabilities”.[26]I had no hesitation in concluding that the Claimant had tendered altered documents in evidence. The alterations, if accepted, would have supported his case. He had a clear motive for deliberately making those alterations. It was clear that the documents as presented by the Respondent had been uploaded to the portal (“CX”) at or around the time of their creation. In one case there was a photograph of the document on the lap of the Claimant, clearly taken at the point of delivery, but without the letters “JK” added. It was clearly wrong to suggest that the documents had been edited with Photoshop (or, even less plausibly, with Microsoft Paint) by the Respondent in the narrow two-minute window between the time- stamps on the documentary evidence. It was also not credible to suggest that the documents could have been consistently edited by the Respondent without leaving detectable signs.[27]The Claimant’s position was also unnervingly specific: on the Claimant’s case, the Respondent would have needed to have removed the signatures from every single document on the portal, not knowing which of the many documents would later be relied upon by the Claimant. The documents would have numbered in their hundreds: this would have required a disproportionate amount of effort and time on the part of the Respondent.[28]I reviewed the video footage of the documents being downloaded from the portal, with metadata; I could clearly see the process by which the Respondent came to be in possession of the documents which it subsequently disclosed. I found that this process left no realistic prospect that the documents which were disclosed by the Respondent had been altered.[29]I considered that the Claimant’s conduct, in tendering – and knowingly tendering – altered documents in evidence was both scandalous and unreasonable. I also considered that this conduct fundamentally undermined the Claimant’s credibility: it would simply not be possible to place any real weight on the Claimant’s evidence, because he had demonstrated a willingness deliberately to attempt to mislead the Tribunal. Unless the Respondent’s evidence was such that the Claimant’s case might be established on the basis of the Respondent’s evidence, the Claimant’s case had no reasonable prospect of succeeding.[30]I reviewed and considered the Respondent’s evidence. If the Respondent’s evidence were accepted, the Claimant’s case must necessarily fail: the Respondent’s evidence was clear that the Claimant was an independent contractor, and not a “limb b” worker within the meaning of s 230 Employment Rights Act 1996. There was no reasonable prospect that the Claimant’s case would succeed in reliance only on the Respondent’s evidence. Strike-out[31]Having made those findings I invited submissions on whether I should strike out
the claim.
[32]I listened carefully to Mr Slivinsky’s submissions. Mr Slivinsky argued that it would be unfair to disregard the evidence of possible fraudulent behaviour on the part of the Respondent. I found that there was no reasonably credible evidence which would establish a prima facie case of fraudulent behaviour on the part of the Respondent.[33]Mr Slivinsky also argued that the Respondent had failed to provide evidence of, for example, paying for the insurance for the vehicle used by the Claimant. The difficulty with that submission is that it was not relevant to the question of the Claimant’s conduct.[34]Further, Mr Slivinsky argued that it was possible that both parties had not been honest. For the reasons set out above, I rejected that submission. There was no basis on which I might go on to conclude that the Respondent had been dishonest. For completeness, I found that Mr Kokurowski, giving evidence for the Respondent, had been clear and candid throughout his evidence; he was an honest witness and I accepted his evidence.[35]I reminded myself of the overriding objective and the need to deal with cases justly and fairly; and of the wording of Rule 38 of the Tribunal Rules. I concluded that it would be appropriate in the circumstances to strike out the claim in its entirety. Given the Claimant’s conduct, it would not be neither fair nor just to do otherwise. Costs[36]I noted that the findings above in principle engaged the Tribunal’s jurisdiction to make an order for costs. However, I considered that it would be unfair to deal with the issue of costs without giving the parties each an opportunity to put their cases.[37]I therefore directed that the Respondent should have 14 days to put in any application for costs, in writing, and in doing so would need to say whether it wanted a hearing, or whether it would be content for the application to be dealt with on the papers. The Claimant was given 28 days to respond to that application, and also to say whether he wanted a hearing, or whether he was content for the matter to be dealt with on the papers; the case thereafter being reserved to me for further
consideration.
[38]I reminded the parties of rr 72 – 82 of the Tribunal Rules.[39]Neither party objected to this course of action, and I therefore directed accordingly. Approved by: Employment Judge E Macdonald 17 August 2025
consideration.
[1]The Claimant is ordered to pay to the Respondent the sum of £1,859 in respect of the Respondent’s costs.
Background
[2]This decision is made in respect of the Respondent’s application for costs, stated to be made under r 74 of the Employment Tribunal Rules of Procedure 2013, but which I treat as having been made under rr 72 – 76 of the Employment Tribunal Rules of Procedure 2024 (“the Rules”).[3]The claim was heard on 9 and 10 July 2025 and was struck out under r 38(1) of the Rules by a Judgment dated 10 July 2025 and sent to the parties on 22 July 2025. Reasons were subsequently requested by the Claimant, and I refer where relevant to those Written Reasons, dated 17 August 2025.[4]In striking out the Claimant’s case, I found (summarising Paragraphs 26 – 30 of the Reasons) that:a. The Claimant had tendered altered documents in evidence.b. That conduct, in tendering – and knowingly tendering – altered documents in evidence was both scandalous and unreasonable.c. Given the above, the Claimant’s case had no reasonable prospect of succeeding.[5]I noted that this in principle engaged the Tribunal’s jurisdiction to make an order for costs (as the Rules cited below make clear, that finding required me to consider making an order), but I also considered that it would be unfair to deal with that issue without giving the parties each an opportunity to put their cases. The Respondent would be given 14 days to make any application for costs in writing and to indicate whether it wished a hearing; the Claimant would be given 28 days to respond.[6]The Respondent applied for costs by email dated 24 July 2025 and that application was referred to me on 6 August 2025. Time for responding to that application would have elapsed on 21 August 2025.[7]On 18 August 2025, no correspondence having been received from the Claimant, the Claimant was directed to respond to the application within 14 days setting out the basis (if any) on which he would oppose the application and stating whether he was content for the application to be dealt with on the papers, in effect giving the Claimant additional time to respond.[8]The Claimant was therefore not only given an opportunity to respond to the application, but was offered a reminder and an extension of time. No response was received, whether within that extended time period or indeed by the date of this decision.
Law
[9]The Rules provide insofar as is material as follows: 2 [. . .] “costs” means fees, charges, disbursements or expenses incurred by or on behalf of any party (including expenses that witnesses incur for the purpose of, or in connection with, attendance at a Tribunal hearing). In Scotland all references to costs (except when used in the expression “wasted costs”) must be read as references to expenses; “costs order” has the meaning given in rule 73(1); [. . .] 72. In this Part— “paying party” means a party liable to pay costs; “preparation time” means time spent by the receiving party (including by any of the receiving party’s employees or advisers) in working on the case, except for time spent at any final hearing; “receiving party” means a party entitled to be paid costs. 73.—(1) A costs order is an order that the paying party make a payment to—(a) the receiving party in respect of the costs that the receiving party has incurred while represented by a legal representative or a lay representative [. . .] 74.—(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,(b) any claim, response or reply had no reasonable prospect of success [. . .] 75.—(1) A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. (2) The Tribunal must not make a costs order or a preparation time order against a party unless that party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order). 76.—(1) A costs order may order the paying party to pay— (a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined— (i) in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998(1), or by the Tribunal applying the same principles; [. . .] (3) A costs order under sub-paragraphs (b) to (d) of paragraph (1) may exceed £20,000. 82. In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.[10]The decision to make a costs order is the exception rather than the rule: Yerrakalva v Barnsley Metropolitan Borough Council [2011] EWCA Civ 1255.[11]“Unreasonable” has its ordinary English meaning: Dyer v Secretary of State for Employment EAT 183/83[12]A lie on its own will not necessarily be sufficient to found an award of costs. It will always be necessary for the Tribunal to examine the context and to look at the nature, gravity and effect of the lie in determining the unreasonableness of the alleged conduct: Arrowsmith v Nottingham Trent University [2011] EWCA Civ 797. A false allegation at the heart of a claim may result in a finding of unreasonable conduct: Daleside Nursing Home Limited v Mathew UKEAT/0519/08.[13]The question of reasonable prospect of success is an objective assessment; it is a matter of whether the party had reasonable grounds for thinking that they were in the right: Scott v Inland Revenue Commissioners [2004] ICR 1410 CA. The application[14]The Respondent submitted (in short) that the Claimant’s conduct was a “serious abuse of process”; that the claim was weak; that it was advanced on a false premise using falsified documents; that the Claimant’s conduct became unreasonable and scandalous at least from 5 June 2025 when he disclosed altered documents, but that the whole process had been tainted by a false foundation; and that it had therefore incurred costs from the outset as a result of having to defend a claim that was never legally sound.[15]The Respondent also submitted that, in the alternative, costs should be awarded from the date the Claimant disclosed falsified evidence, whereby (or wherefrom) the Claimant’s conduct became unreasonable, scandalous, and the claim had no prospects of success. The Respondent helpfully provided a split Schedule of Costs to assist in the event that I were to make that finding.[16]As a preliminary matter I need to consider whether the Claimant has had a reasonable opportunity to make representations. I consider that he has: both in writing (because he was given that opportunity expressly) and at a hearing (because he was given the opportunity to request one). No response was received.[17]I do not conclude that the Claimant knew his claim had no reasonable prospect of success from the inception of the proceedings (hence, was pursued unreasonably from the outset); or that, on an objective assessment, the Claimant had no reasonable grounds for thinking that he was a worker from the point at which the claim was submitted, or indeed up until the final hearing; he may, perhaps wrongly, have considered that he had an arguable case but sought to bolster it by producing altered documents. There was, on an objective assessment, a live issue as to whether the Claimant was a “limb b” worker when the claim was issued.[18]I consider that the Claimant’s conduct in disclosing and then relying on altered documents, which he must have known to have been altered, was unreasonable and also abusive within the meaning of r 74(2). The discretion to make a costs order is clearly engaged as a result.[19]I consider that from the point at which the altered documents were put forward, the claim had no reasonable prospect of success. I consider that the phrase “reasonable prospect of success” cannot include success based on a deliberately false representation.[20]I therefore consider that the discretion to make an order for costs is engaged by reason of the Claimant’s conduct in disclosing, relying on, and maintaining reliance on altered documents.[21]I then turn to whether the discretion should be exercised. In my view it should. I have considered the application of r 82 (cited above); however, I have not been asked to take account of the Claimant’s means, despite the Claimant having been given an opportunity to respond to the application.[22]I then turn to the amount of the order. I remind myself that costs payable should be limited to those which are “reasonably and necessarily incurred”: Yerrakalva cited above. There must be some kind of link between the costs sought and the conduct complained of, although a broad-brush approach is appropriate.[23]Again, I may take account of the paying party’s means at this stage, but for the reasons set out above I decline so to do, there being no evidence of the paying party’s means, and no issue of means having been raised.[24]I then consider what costs resulted from the Claimant’s unreasonable and/or abusive conduct. The Respondent was put to the cost of preparing for a hearing which was, by that point, being advanced on a fundamentally misleading basis by the Claimant. I find that it is appropriate for the Respondent to be compensated for that cost, having reminded myself of the overriding objective of dealing with cases fairly and justly.[25]I have considered the Respondent’s Schedule of Costs which sets out the costs from 5 June 2025 to 22 July 2025 (inclusive of the costs application and schedule) at a rate of £44 per hour, for a total time of 42.25 hours and a total cost of £1,859. I consider that all of the elements set out in that Schedule of Costs are elements which were reasonably and necessarily incurred, and I also consider that the total figure sought is reasonable and proportionate. The total sum sought for that period is the figure that I order to be paid by the Claimant to the Respondent: £1,859. Approved by: